Franklin v. Koster
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that respondents motion to alter or amend the Courts judgment pursuant to Federal Rule of Civil Procedure 59 (e) [Doc. # 48 ] is denied. Signed by District Judge Carol E. Jackson on 10/31/16. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JERRY D. FRANKLIN,
Case No. 4:11-CV-934-CEJ
MEMORANDUM AND ORDER
This matter is before the Court on respondent’s motion to alter or amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e). The petitioner has not
filed a response, and the time allowed for doing so has expired.
On June 29, 2010, Jerry Franklin pled guilty in the Twenty-Second Circuit
Court of Missouri (City of St. Louis) to two counts of first degree assault on a law
enforcement officer, in violation of Mo. Rev. Stat. § 565.081. See State v. Franklin,
No. 0922-CR05755-01; Resp. Ex. A. He was sentenced on that same day to two 18year terms of imprisonment that were to run concurrently with each other and with
a previously-imposed 216-month federal sentence for possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Resp. Ex. A at
On May 23, 2011, Franklin filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The Court conditionally granted Franklin’s petition on
the grounds that he was denied effective assistance of counsel by reason of his
attorney’s failure to file a direct appeal of the state court judgment as instructed.
[Doc. #46]. Respondent now moves to alter or amend pursuant to Federal Rule of
Civil Procedure 59(e). [Doc. #48].
Federal Rule of Civil Procedure 59(e) clarifies the power of district courts to
correct their own mistakes in the time period immediately following entry of
judgment. Norman v. Ark. Dep’t of Educ., 79 F.3d 748, 750 (8th Cir. 1996) (citing
White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 450 (1982)). The rule affords
district courts “broad discretion” to alter or amend a judgment. United States v.
Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006).
Rule 59(e) motions “serve the limited function of correcting ‘manifest errors
of law or fact or to present newly discovered evidence.’” Id. (quoting Innovative
Home Health Care v. P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th
Cir. 1998)). Relief is only available when a manifest error “affects the correctness of
the judgment.” Norman, 79 F.3d at 750 (internal quotations omitted).
Conversely, a party should not use the motion to “introduce new evidence,
tender new legal theories, or raise arguments which could have been offered or
raised prior to entry of judgment.” Innovative Home Health Care, 141 F.3d at 1286.
This rule applies with equal force in the habeas context – a Rule 59(e) motion
cannot be used to raise new arguments that could have been asserted prior to final
judgment. See, e.g., Mathenia v. Delo, 99 F.3d 1476 (8th Cir. 1996).
Respondent argues that the Court should grant its Rule 59(e) motion
because (1) the Court erroneously determined that Franklin showed cause and
prejudice to excuse procedural default, (2) Franklin did not adequately plead an
ineffective assistance of counsel claim, (3) the Court should have held an
evidentiary hearing as “Franklin, his documents, and his affiants are not credible,”
and (4) the state circuit court’s decision did not involve an unreasonable application
of clearly established federal law. [Doc. #48].
With regard to the Court’s findings of cause and prejudice, respondent
disputes the Court’s interpretation and application of Martinez v. Ryan, 132 S. Ct.
1309 (2012). The Court has reviewed respondent’s arguments and finds no error in
its previous ruling.1 Further, the Court previously analyzed and rejected each of the
respondent’s remaining arguments. [Doc. #46 at 15, 22–23 (addressing the state
circuit court’s application of federal law); id. at 16–23 (evaluating the factual
sufficiency of petitioner’s claims); id. at 25–26 (rejecting the need for an
Respondent also filed new evidence in support of the Rule 59(e) motion.
This new evidence consists of defense counsels’ affidavits, disputing petitioner’s
assertion that he directed them to appeal the state court judgment. [Doc. #50].
Martinez explicitly holds that “[w]here, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.” Martinez v. Ryan, 132 S. Ct. 1309,
1320 (2012) (emphasis added). Moreover, the facts here are distinguishable from Arnold,
where a habeas petitioner retained representation both at his initial-review collateral
proceeding and on appeal from that proceeding. Arnold v. Dormire, 675 F.3d 1082, 1087
(8th Cir. 2012). Finally, Coleman is distinguishable; at the initial review collateral
proceeding, the court held a two-day evidentiary hearing and the petitioner had
representation. Coleman v. Thompson, 501 U.S. 722, 756 (1991).
Respondent also disputes the Court’s finding of prejudice. But Roe directly applies to
this particular type of ineffective assistance of counsel claim – where a defendant
affirmatively requested an appeal and counsel did not comply. The Court noted that while
generally it would require a “showing of actual prejudice (i.e., that but for counsel’s errors,
the defendant might have prevailed) when the proceeding in question was presumptively
reliable,” it would “presume[e] prejudice with no further showing from the defendant on the
merits of his underlying claims when the violation of the right to counsel rendered the
proceeding presumptively unreliable or entirely nonexistent.” Roe, 528 U.S. at 484.
But, respondent makes no showing that “(1) this evidence
was discovered after
trial; (2) the movant exercised due diligence to discover the evidence before the
end of trial; (3) the evidence is material and not merely cumulative or impeaching;
and (4) a new trial considering the evidence would probably produce a different
result.” United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir.
The Court finds that the arguments and evidence respondent presents in the
instant Rule 59(e) motion have or could have been raised prior to entry of
judgment. The respondent will not be afforded a “second bite at the apple.” Id. at
936. Moreover, respondent has not shown any manifest errors of law or fact in the
granting of petitioner’s habeas petition.
IT IS HEREBY ORDERED that respondent’s motion to alter or amend the
Court’s judgment pursuant to Federal Rule of Civil Procedure 59(e) [Doc. #48] is
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 31st day of October, 2016.
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